The Antiregulatory Arsenal, Antidemocratic Can(n)ons, and the Waters Wars.

• Author: Buzbee, William W.

ABSTRACT

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected "waters of the United States." This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array of antiregulatory skews and frames can be decisive, especially when wielded before sympathetic judges skeptical about the administrative state or environmental protection. The Article questions the legitimacy of this antiregulatory arsenal, highlights how these antiregulatory moves in the Waters setting often dodge actual statutory choices, and identifies countervailing strategies that are more respectful of democratic choices. The new antiregulatory canons are akin to weaponized cannons empowering judges. The Article calls for judges to apply more legislatively respectful frames in exploring questions of regulatory power, with greater attention to statutes' policy priorities and obligations assigned by Congress and wielded by agencies based on scientific or factual criteria prioritized in governing statutes.

CONTENTS INTRODUCTION I. A BRIEF REVIEW OF THE WATERS QUESTION'S STATUTORY ROOTS AND EARLY INTERPRETIVE STABILITY II. FRAMING AND NAMING THE PROREGULATORY CONSENSUS AND EMERGENT ANTIREGULATORY ARSENAL IN WATERS JURISDICTION DISPUTES A. The Pre-SWANCC Proregulatory Frames B. The Antiregulatory Arsenal Begins to Emerge 1. The Federalism Revival and Clear Statement Skews 2. SWANCCs Destabilizing Ruling 3. Rapanos and Its Many Questions 4. Post-Rapanos Regulatory Vacillation to Sackett III. THE ANTIREGULATORY ARSENAL, DISTILLED A. Anti-Federal Skewing and Deference Lost B. Anecdotal Tales of Overreach C. Microtextualist Moves and Erratic Attention to Context IV. POLITICAL BRANCH PRIMACY AND RESPONSES TO THE ANTIREGULATORY ARSENAL A. Statutory Interpretation and Drafting Counters 1. Statutory Language Clarity 2. "Waters of the United States" as a Statutory Methodology Puzzle B. Regulatory Effects' Complexity Counters C. Methodological Critique of Unfounded, Skewed, or Illogical Claims D. Check Unfounded Empirical Claims E. Major Questions Counters CONCLUSION INTRODUCTION

The Clean Water Act (CWA or the Act) (1) has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. Looking at this law's track record, or particular regulations and related battles, could lead a reader to misunderstand key drivers of waters-linked legal choice and contestation. Such contestation over waters protection turns on far more than just what Congress wrote, or changing science, or interest group realignments. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected "waters of the United States" (WOTUS or "Waters"). (2) this is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation.

This Article traces key moves and developments in this multidecade battle over Waters protections. As with much law, developments concerning the CWA and WOTUS draw on familiar regulatory moves and countermoves but also have themselves generated new weapons in this increasingly prevalent and often powerful antiregulatory arsenal. This array of antiregulatory skews and frames can be decisive, at least when wielded before sympathetic judges skeptical about the legitimacy or benefits of the administrative state or environmental protection. The Article closes by identifying countervailing strategies and arguing for a more democracy-respecting and science-focused approach when addressing the issue of Waters protection and in other environmental regulation battles. The new antiregulatory canons are now akin to weaponized cannons empowering judges. They are often far from neutral interpretive canons or frames applied to questions of legal meaning, policy priorities, or regulatory power as allocated by Congress and wielded by an agency based on scientific or factual criteria set forth in statutes.

1. A BRIEF REVIEW OF THE WATERS QUESTION'S STATUTORY ROOTS AND EARLY INTERPRETIVE STABILITY

   This Part provides a brief review of the CWA provisions at issue in Waters battles and early approaches to that question. The CWA extends federal jurisdiction to regulate water pollution to "navigable waters," which in turn are defined as "the waters of the United States." (3) The "navigable waters" language was drawn from the Rivers and Harbors Act (RHA). (4) The RHA mainly regulated waterway obstructions but also regulated water pollution. (5) In early enforcement actions and regulatory interpretations, the Army Corps of Engineers ("Army Corps") interpreted the RHA's section 13 "navigable waters" language to limit its regulatory power to materials specifically impeding navigation. (6) By around 1970. as pollution concerns intensified, more expansive views of the RHA's protections were asserted by antipollution enforcers and, eventually, the Army Corps itself. (7)

   The statutory definition of "navigable waters" included in the CWA--"waters of the United States"--built on RHA law, but went even further. Congressional discussions about this 1972 amendment state a desire to provide broader regulatory power than in the RHA. (8) An early narrow Army Corps interpretation of this CWA Waters language was judicially rejected for unduly constraining the Agency's own power. (9)

   For roughly the next forty-five years, all government actors, including those in both Democratic and Republican administrations, embraced or at least concurred in the view that this language extended federal jurisdiction to protect Waters as far as the Commerce Clause would allow. (10) The Supreme Court had decades earlier, in United States v. Appalachian Electric Power Co., (11) strongly affirmed that federal authority over the nation's Waters extended beyond a mere focus on shipping-linked "navigable-in-fact" Waters. The Court stated that "[n]avigability ... is but a part of this whole" of federal Commerce Clause authority. (12) Similarly, the Court had upheld jurisdiction over Waters due to flood control rationales. (13)

   And in the more broadly significant Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc. (14) case, the Supreme Court held that pollution-focused regulation aimed at preventing environmental harms from commercial activity easily surmounted challenges to federal constitutional power due to the numerous facets of commerce implicated. (15) Nothing in that case focused on interstate water flows and linked commerce as a necessary foundation for federal environmental laws. Promulgated CWA regulations issued during the 1970s, which were only modestly adjusted thereafter, fleshed out particular types of Waters subject to federal protection, including a sweep-up provision protecting Waters used for, subject to use for, or affecting interstate commerce. (16)

   As a result, both industrial dischargers and those seeking to dispose dredge or fill materials encountered a strong CWA that disfavored the filling of any Waters, plus a requirement of permits for any industrial discharges, with ever-tightening reductions in permitted discharged pollution. But because water-edge land is of immense value for development and industrial polluters and the agricultural sector claimed concerns with regulatory uncertainties and possible liability, success in weakening the CWA's Waters reach offered a huge economic opportunity. (17)

   A 1980s effort to weaken the power of the Environmental Protection Agency (EPA) and the Army Corps to protect Waters "adjacent" to larger "navigable in fact" Waters suitable for ships, shipping, and commerce, or perhaps adjacent to a clear wetland, came up short. The Supreme Court in United States v. Riverside Bayview Homes, (18) in 1985, unanimously agreed that delegated, expert, science-intensive regulatory judgments about where to draw the appropriate line between land and water were worthy of deference. (19) The 1977 amendments, in a provision directed at state delegated programs, had added explicit language about federal regulation of "adjacent wetlands," making the outcome affirming federal regulatory power easier as a statutory interpretation matter. (20)

   This ruling reflected and was consistent with the period's low-conflict consensus about the reach of federal power under the Constitution, the need for judicial deference to expert regulatory judgments, and the CWA's reach. (21) Land and water exist on a continuum, and the CWA made protecting the country's Waters from pollution a national priority. Expert regulatory judgments about where to draw the protective line were not suitable for judicial second-guessing.

2. FRAMING AND NAMING THE PROREGULATORY CONSENSUS AND EMERGENT ANTIREGULATORY ARSENAL IN WATERS JURISDICTION DISPUTES

   Since Riverside Bayview, little has been settled. Waters jurisdiction has been under perpetual attack, with the decisive antiregulatory Waters shift occurring in the Solid Waste Agency of Northern Cook County, (22) or SWANCC, case. This Part first examines the preceding period of stability about regulatory power from a broader legal perspective, then turns to the emergence of the antiregulatory arsenal, analyzing how this arsenal has both shaped and been shaped by Waters battles, ultimately emerging stronger from these disputes.

   1. The Pre-SWANCC Proregulatory Frames

      The regulatory--or perhaps proregulatory--building blocks or frames that led...